Georgia Clemency

Scalia, SCOTUS & Troy Davis’ Last Gasp

Late yesterday afternoon, the Supreme Court of the United States stayed the execution, set for Tuesday night, of Cleve Foster in Texas. The words of the order were simple:

The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court.

But there is way more than meets the eye here, because this is not Foster’s first time to the Supreme Court stay rodeo. From a CBS News report earlier in the day before the stay was issued:

Cleve Foster, a Texas inmate sentenced to die for the rape-slaying of a Fort Worth woman nearly a decade ago, is scheduled to be executed tonight – he has been spared from the death chamber twice this year amid appeals.
Foster, 47, is set to die Tuesday evening for fatally shooting 30-year-old Nyaneur Pal, whose body was found in a ditch by pipeline workers on Valentine’s Day 2002. Foster’s execution would be the 11th this year in Texas.

That is what is unusual here. Foster has been up to the Supremes twice and was bounced back the last time without even reaching the merits. Yet here he is again – with a stay – a stay in which the process was initiated by Antonin Scalia. Now the truth of the matter is Scalia is the designated on call judge, what we in the criminal defense bar colloquially term the “hot judge”, for the 5th Circuit, so it would go through Nino. But, still, it is fascinating to see two death cases in five days stayed out of Texas, the death penalty capital of the world, with Scalia’s name on the order.

Foster won his first pardon in January from the U.S. Supreme Court, which halted his execution again in April when it agreed to reconsider an appeal that raised claims of innocence and poor legal assistance early on in his case.

His execution was rescheduled for Tuesday after the high court turned down that appeal.

I was half convinced the Court might even lift the new Foster stay Tuesday night, but I am on the after hours contact list, and have received no such notice as of the time of the instant posting and it is now into Wednesday morning.

Remember, I said this was the second such instance in the last five days? The other one was Duane Buck late last Thursday, which was also somewhat unexpected, although, perhaps, less so than Foster.

Still, that is two surprising instances of death stays by the Supremes in a very short time. Which brings us back to the most talked about execution case in recent memory, Troy Davis in Georgia. Is it a sign or signal from the Supreme Court to Troy Davis’ attorneys and/or the Georgia Clemency Board? Well, probably not literally, no; it would be pretty hard to make that case.

But, figuratively, maybe Continue reading

Emptywheel Twitterverse
bmaz @tellmemo @erinscafe Absolutely. Could not agree more.
bmaz Also, does anybody know what @erinscafe has done to Clayton Kershaw??
bmaz Yes, funny how that precise, pin point, US targeting suddenly "accidental" now. Or maybe the "accuracy" always a lie
emptywheel @AdamSerwer I think Exxon would call it a "useful idiot."
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bmaz Can you be more specific? Cause that's about any given 14 day period for the current iteration of the House.
bmaz Pure Michigan Trash Talk Hail to The Fighting Journalists of Northwestern!
JimWhiteGNV My heart goes out to the generous people of Turkey on this tragic day. This beautiful rug is from wife's visit there
JimWhiteGNV Oh, crap. So sad to hear situation in Turkey getting worse. When will the bloodshed stop spreading?
emptywheel @peterwsinger They've been successful as they fight alongside "more extremist" factions--would be material support if Muslim teenager did it
emptywheel @joanneleon Maybe the overt program was just cover for the covert one, until it became inconvenient as a collosal failure? @MaxAbrahms
emptywheel Hey! America!! Our super secret covert program in Syria has been working great if you ignore how it's helping AQ!!
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